Standing Committee A

[Mr. James Cran in the Chair]

Mental Capacity Bill

Clause 4 - Best interests

Amendment proposed [this day]: No. 136, in clause 4, page 3, line 16, at end insert— 
'(e) an independent advocate if (a) to (d) do not apply.'.—[Mrs. Browning.]

Question again proposed, That the amendment be made.

James Cran: I remind the Committee that with this we are discussing the following amendments: No. 95, in clause 5, page 3, line 35, at end insert
'and P has sought the involvement of an independent advocate where the matter to be determined is one falling within section 34.'.
 No. 96, in clause 5, page 3, line 43, at end add— 
'(5) Section 5 does not authorise an act in connection with serious medical treatment or a change in P's accommodation to a hospital or care home unless P receives advice from an independent advocate in accordance with section 34.'.

David Lammy: Before we adjourned, I was concluding my remarks on these amendments. It is important that the Government target resources at the most vulnerable people in the most serious situations, which is what we aim to do through the establishment of an independent consultee. I hope that my assurances persuade the hon. Members for Sutton and Cheam (Mr. Burstow) and for Tiverton and Honiton (Mrs. Browning) not to press their amendments.

Angela Browning: I am a little disappointed because I do not know how the scenario that I portrayed of adults moving out when the parental home was in crisis would be represented if they had never previously had a social worker, for example. I should like to think that someone independent would be there to consider what was being proposed for them. However, I shall return to the matter at a later stage in the hope that the Minister will consider it again. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Angela Browning: I beg to move amendment No. 135, in clause 4, page 3, line 27, at end add—
'(9) He must exercise non-discrimination in respect of disability or age.'.

James Cran: With this it will be convenient to discuss amendment No. 108, in clause 4, page 3, line 27, at end add—
'(9) Where it appears to a relevant authority that— 
 (a) a person, ''C'', is engaged in caring for another person, ''P'', and 
 (b) section 5 may apply to acts in connection with the care or treatment provided by C to P, and 
 (c) C is not a person to whom section 40(4) applies (those individuals who are under a duty to comply with the Code) 
 that authority shall provide C with the codes of practice referred to in section 40(1)(b) (guidance for persons acting in connection with the care or treatment of another person) and take any other steps as it considers reasonably necessary to assist C in complying with section 5(1) (ensuring that P lacks capacity and reasonably believing that the act is in P's best interests). 
 (10) For the purpose of subsection (9) ''relevant authority'' means either— 
 (a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990, or 
 (b) a Health Authority, Local Health Board, Special Health Authority, Primary Care Trust or National Health Service trust which is responsible for providing or arranging services under the National Health Act 1997.'.

Angela Browning: We touched briefly on these matters on Tuesday, but I felt it was important to add to subsection (8) the requirement that the decision is made as a result of exercising
''non-discrimination in respect of disability or age.'' 
We have disability legislation, but not legislation that relates to discrimination on the ground of age.

Claire Curtis-Thomas: On a point of order, Mr. Cran. I was wondering whether members of the public are to be invited to join us.

James Cran: I was not aware that members of the public had been prevented from so doing.

Claire Curtis-Thomas: There was a policeman outside.

James Cran: Perhaps the matter could be investigated.

Angela Browning: There is legislation in respect of disability, but in many of the day-to-day cases that we have considered within the scope of the Bill, it is unlikely that the Disability Discrimination Act 1995 would kick in unless a formal complaint was made or the matter was something that the Disability Rights Commission felt was worth taking forward. I know from my discussions with the commission that it often looks for ''critical mass'' before it initiates action on a problem.
 People who make decisions bring with them certain prejudices. I have now reached what is known as later life—that is, over 50 years old—[Hon. Members: ''Never.''] I am afraid so. The same is probably true of quite a few members of Committee, and we all know how we start to see discrimination on the grounds of age. We often debate the matter on the Floor of the House. We know that it exists. Within our lifetimes, we can remember when people with disabilities were not regarded by the state or society as worth educating. Fortunately, that has changed, but the time scale in which that change has taken place has been brief and many people still carry with them a lot of prejudices in their perception of disability and age. The amendment would add to the clause the requirement on people to think twice about any personal prejudices that they had in respect of age or disability.

David Lammy: The hon. Lady has again raised the issue of discrimination that we discussed on Tuesday in relation to amendment No. 90. The Government share the hon. Lady's concern that everyone should be treated with equal respect and have equal access to health care and other services. That is very much in keeping with the spirit of the Bill, which sets out to change public attitudes and behaviour towards people who may lack capacity.
 Although I understand the hon. Lady's concern, I assure her that the Bill, together with the Disability Discrimination Act 1995, already contains adequate provision to prevent discrimination on the basis of disability. We consider that the Bill offers considerable protection against discrimination. It requires all actions taken and decisions made on behalf of the person lacking capacity to be in the person's best interests and, as I said on Tuesday, it would clearly not be in a person's best interest to be unfairly discriminated against. 
 The Disability Discrimination Act provides further reassurance. Part III deals with discrimination in the provision of goods, facilities and services. In our discussions on Tuesday, the hon. Member for Daventry (Mr. Boswell) helpfully raised the relevance of the Act in relation to the Bill's provisions, because of the read-across of the Mental Capacity Bill's reference to impairment in clause 2. The very first clause of the Disability Discrimination Act says that 
''a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities''.

Tim Boswell: The Minister will recall a degree of diffidence in my putting the point on Tuesday. The fact of an impairment, albeit one that affects mental capacity, would not necessarily by itself prevent someone from carrying out their normal duty. There is no precise correlation between the fact of impairment and the lack of mental capacity, even if that impairment is a mental one.

David Lammy: The hon. Member is right to establish that nuance, but as I said it is unlawful for a service provider unjustifiably to refuse to provide a service to a disabled person on the same terms as to other people. Service providers are required to make reasonable adjustments to enable disabled people to make use of their services. Those provisions mean that hospitals, care homes and social services must offer people who lack capacity the same standard of service, on the same terms, as all members of the public. As I said on Tuesday, however, the Disability Discrimination Act does not cover discrimination in private situations. That is because discrimination is a matter of civil law, and is difficult to enforce in a private sphere. Private individuals discriminate in their personal relationships, which is not unlawful. As the Bill covers both public and private situations, an all-encompassing anti-discrimination clause would be unenforceable.
 I appreciate what the hon. Member for Tiverton and Honiton and other hon. Members have had to say about age discrimination—an issue that has rightly been discussed inside and outside this place for some 
 time. There may well be a case for legislation in that area, but the proper place for anti-discrimination provisions is in specific anti-discrimination legislation, with a proper framework and mechanisms supporting the measures. I am aware of work being done by my colleagues in the Department of Trade and Industry to tackle age discrimination in the workplace. Their consultation document ''Equality and Diversity: Age Matters'' was the first to focus exclusively on proposals for age legislation. The issue is live in and around the political world. Therefore, while sharing the hon. Lady's concern to prevent discrimination, we do not think it is necessary or helpful to amend clause 4 in order to do so. I hope she feels reassured and is able to withdraw her amendment.

Angela Browning: I am grateful to the Minister. In my heart, I am not that reassured, but in view of the fact that I want the Committee to make progress and I do not want a lot of amendments to be dealt with under the guillotine at the end of this sitting, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn. 
 Clause 4 ordered to stand part of the Bill.

Clause 5 - Acts in connection with care or treatment

Tim Boswell: I beg to move amendment No. 16, in clause 5, page 3, line 31, leave out paragraph (a).

James Cran: With this it will be convenient to discuss the following amendments: No. 93, in clause 5, page 3, line 32, leave out from beginning of line to 'and', and insert
'has capacity to consent to the act and must ascertain P's best interests if P is unable to consent for himself in accordance with section 4'.
 No. 94, in clause 5, page 3, line 34, leave out from 'capacity' to 'and', and insert 
'to consent to the act'.
 No. 17, in clause 5, page 3, line 39, at end insert 
'but he may be civilly liable to P both for acts done without P's consent, and also for any failure to take reasonable steps to establish whether P lacks capacity in relation to the matter in question or in failing to consult P about his view on the matter'.

Tim Boswell: Surprisingly, although it would seem more radical to excise a paragraph, as we propose under amendment No. 16, amendment No. 17 is the more radical and substantive.
 It has been brought to my attention that the Liberal Democrat benches are unmanned this afternoon. Committee members will be aware that that happens from time to time due to constituency obligations, particularly on Thursdays. I intend to say nothing derogatory about that, because it is perfectly reasonable and happens occasionally, although it is regrettable. I assure the Committee that I have no wish to assume the mantle of the Liberal Democrat spokesman. I have enough difficulties as it is with my side of the argument. However, there may be occasions when, in order to facilitate the argument, it is sensible for one of us to step in and move a Liberal Democrat amendment so that we do not lose the point. I say that because the word ''interest'' has been 
 mentioned a number of times, and the research that I have done does not indicate that my amendments, which come later in the group, are contingent or dependent on a Liberal Democrat lead. We shall see how it goes. I say that not by way of advance decision, but advance health warning. 
 I do not propose to say anything in particular about the Liberal Democrat amendments—because I have not thought about them much—but I shall say something about mine. Amendment No. 16 would exclude clause 5(1)(a). There are two duties on D in relation to P. We should remember that the situation in question involves what might be termed a common carer, not a person who is taking a decision in a medical or professional capacity. It is the kind of position that we might hold in relation to our loved ones or others we may be required to help—for example, in an emergency—in which we may need a degree of legal protection. One benefit of the Bill is that it offers for the first time a coherent legal protection for innocent people who are acting on behalf of others. 
 The Bill is structured with two obligations. First, there is the advance one, which I am nominally, for probing purposes, seeking to remove, whereby a person should be taking reasonable steps to establish whether P lacks capacity in relation to the matter in question when the act is taking place—remembering that the decision is not quite the same as an act. The Minister may like to comment on that . In such a case, I think that a decision is instantaneous, but that may not be so. It may be conditional, but when it actually takes place it is instantaneous. In the second obligation, D must reasonably believe that P lacks capacity and that it will be in P's best interests to carry out the act. I reassure the Committee that I have no intention of returning to the ''best interests'' issue now. 
 For the purpose of amendment No. 16, the question is: what are the reasonable steps that D would have to take beforehand? The Minister will no doubt want to tell us that that is ultimately for the courts to determine and one could have regard to the code. Well founded suggestions from another quarter say that it is important that people who are not experts are given adequate information about the code and what it is reasonable for them to know. The Minister will remind us that reasonableness is fairly well and objectively founded in law, and it should be clear enough to somebody doing something that they have legal cover for doing it. 
 That brings me to the purpose of amendment No. 17, which was specifically about what happens if that is not done—if the carer, or person responsible for the care of the person who is arguably without capacity acts carelessly or is acting in a way that might eventually lead to some civil, or even criminal, proceeding. 
 The Minister will know—I make this point to begin with, and I hope it reassures him, too—that the new negligence offence in clause 42 will not fall in relation to clause 5. Someone criminally negligent will continue to be so. However, I was concerned about the nature 
 of what I think the lawyers would call the tort—the Minister will correct me if I am wrong—in respect of the offence between the carer and the person without capacity. Is acting without consent in itself something that could be the subject of civil litigation? 
 Failure to take reasonable steps to ascertain whether the person had mental capacity is contingent upon any harm done by the failure to do that. That is precisely the sort of thing that judges get excited about when they suggest punitive damages because somebody's procedure has been at fault. Even assuming that mental capacity or the lack of it has been established, I am concerned about the position in respect of failure to consult the person involved and to have regard to their feelings and the other duties set out in clause 4. As a subset of that question, I am concerned about whether an advance decision made when the person had capacity is complied with. 
 The last thing I want to do is signal to the Committee a wish to create a spider's web of litigation that enfolds genuine carers. I am just anxious to tease out of the Minister what the duties are on a carer—they are set out to some extent—and what sort of litigation could arise or would not be excluded by the way the duties are set out. Clearly, there is no justification for a person to neglect somebody in their care, and as I understand it that would now be subject to a criminal proceeding under clause 42—I see that the right hon. Member for Rother Valley (Mr. Barron), who is a member of the General Medical Council, is nodding. That is not the issue with regard to this clause; I think that that is taken as read and that we would not want to argue about it. Nor do we want to encourage litigation involving persons who lacked capacity at one time so that the first thing they do when they have recovered—from a period of unconsciousness, for example—is sue their carers. 
 However, the Committee needs to spend a moment or two making clear the questions at issue. Were wrong acts done that damaged the person, perhaps they did have capacity but the carer assumed that they did not? Are acting without consent, or failing to take reasonable steps to ascertain the wishes of the person, or failing to establish whether they have capacity separate heads of damages? Even if those things are established, do they separately constitute a failure to consider the person's feelings in the matter? 
 We are trying to establish an understanding of best practice. Sadly, there will be cases in which this kind of question will be taken to court—by a vengeful relative, perhaps, or for perfectly reasonable reasons, or even for test reasons when somebody feels it is right to have a point explained or brought up in court without regard to the amount of damages. I am unclear about what is at stake, what is the nature of the relationship between the two obligations, and what in principle is sueable in the event of non-compliance. I am anxious to get clarification from the Minister on that. This is not a signal to create difficulties; it is just a signal to try to get the Minister to anticipate them.

Claire Curtis-Thomas: I have a simple question, and I hope that the Minister can answer it. Will D be
 provided with adequate information from the relevant authority to make an informed decision for P?

David Lammy: Amendment No. 16, tabled by the hon. Member for Daventry, proposes that subsection (1)(a) be removed. The effect would be to remove the requirement for the person who does an act in connection with care and treatment to take reasonable steps to establish whether the person lacks capacity in relation to the matter in question before doing it.
 The hon. Gentleman explained the amendment, but I must resist it. It is undesirable, and I shall explain why. He may be aware that paragraph (a) was inserted into the Bill in response to concerns expressed by the Joint Committee, which thought that the clause as originally drafted gave the impression that people had a general authority to intervene and make decisions on behalf of those who lacked capacity. The paragraph therefore emphasised the Bill's ethos of empowerment and personal autonomy, and the key obligation of all carers to support and maximise the decision-making capacity of the person who lacks capacity. 
 The purpose of the paragraph is to underline the fact that people who make decisions on behalf of those who lack capacity must take reasonable steps to determine the latter's lack of capacity in relation to the matter in question. We have discussed those reasonable steps under the best interests clause. The amendment is undesirable in policy terms, for those reasons. 
 The hon. Gentleman linked his argument to amendment No. 17, which is the mainstay of his amendments. It is important to stress that the first part of the amendment is unnecessary and would have no legal effect because of provisions in the Bill. The clause provides a defence against liability, not an authority to act. If the person acting does not follow the steps set out in the clause, he may already be civilly or criminally liable to the incapacitated person for the act done, if the act would be unlawful without his consent. 
 The hon. Gentleman asked for what the provision provided a defence. There is a whole range of defences. He talked about intentional torts, and he was right about that. Assault, battery, false imprisonment, confidentiality and trespass are all matters in respect of which people who cared for those lacking capacity were at the mercy of the common law without knowing any detail. A person may need to invade someone's privacy; they may need to go into the shower to turn a person's water off, or undress an adult son. All those day-to-day circumstances involving people who care for those who lack capacity are for the first time encompassed in a defence under the clause. I hope that that gets to the nub of the hon. Gentleman's point. 
 The clause applies to actions, not decisions. It is because it applies to actions that certain acts could, in other circumstances, be unlawful. The clause is designed to provide a defence for the people who 
 make those caring decisions about acts that happen every day.

Tim Boswell: The Minister is being extremely helpful, as I expected, on what are primarily probing amendments. However, if the Bill does not cover decisions—and the Minister just slipped back into using the word ''decisions'', which almost prompted me to intervene—will he please explain where there is any cover for someone who takes a decision? Presumably that centres on whether the person had mental capacity, and whether steps had been taken. If somebody says, ''That was a very bad decision you took for me while I was unconscious,'' how could redress be sought?

David Lammy: The question is, if someone has taken a bad decision, whether clause 5 provides a defence for that decision. Decisions are not necessarily unlawful per se. It is only if they are not encompassed within the defence provided by clause 5 that there would be a problem. I hope that answers the hon. Gentleman's question.

Tim Boswell: I am anxious not to try to trip the Minister up. I realise that these are important areas, and it may be better to return to them in correspondence, but my understanding from what the Minister said initially was that the clause concerned acts, not decisions. I am happy with that interpretation and explanation in answer to my earlier query. However, if that is the case, we should not be talking about decisions here at all, except that I genuinely and innocently asked whether decisions were a problem for people in the circumstances that we are discussing, in so far as they could be differentiated from acts.

David Lammy: I think the answer is no. Not all decisions are unlawful. They do not all amount to negligence, or to anything that would require such defences.

Tim Boswell: May I have one more try? I am probably picking the Minister's legal brains here, but it will be useful to spend a moment doing so. He has used the word ''unlawful'' a number of times. There is a potential problem if one intrudes on privacy, or otherwise on the person. Clearly, if one intervenes and mental capacity is there, there is a separate issue of any damages done to the person because of that—not in relation to their feelings, if it is possible to separate them, but materially, or some other way. How could somebody either be sued or avoid being sued for the consequences of what they did, other than for intruding on privacy or having acted outside the remit of the clause?

David Lammy: If the hon. Gentleman is asking under what mechanisms people could be sued, he is asking me about process, and it is probably right for me to write to him on the detail; otherwise we might run into choppy water. I hope that the hon. Gentleman is at least partially satisfied, and feels able to withdraw his amendment.

Tim Boswell: The Minister is, as ever, gracious and agreeable. He knows that the issue is serious. The last thing I want to do is trip him up, even accidentally, which would be unforgivable, on any matter of law.
 There remain concerns, some of which he has satisfied specifically in response to these amendments, while others may interest interested parties, and merit a little further reflection. I think it better to leave the amendment for the Minister to reflect on, and for any correspondence that he wants to share with the Committee. I beg leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Angela Browning: I beg to move amendment No. 137, in
clause 5, page 3, line 35, at end insert— 
 '(iii) that it will sustain P's life.'.

James Cran: With this it will be convenient to discuss the following amendments: No. 109, in
clause 5, page 3, line 39, at end insert— 
 '(2A) Nothing in this section permits a person responsible for the care of another person (''P'') to withdraw or withhold treatment or sustenance from P if in doing so he has a purpose of hastening or otherwise causing P's death.'.
 No. 97, in 
clause 5, page 3, line 43, at end add 
 'or authorise an act which is inconsistent with a decision made by a lasting power of attorney or a deputy appointed by a court of protection.'.

Angela Browning: I want to set a test concerning a particular group of people within clause 5. In this debate, and when the Joint Committee took evidence, we talked about people who had lost capacity, but not permanently. In relating the legislation to that group we cited the example of people with progressive dementia, who on some days would be quite lucid and on other days not, or people with schizophrenia, who would sometimes be good but at other times would have problems, and would lose capacity. My amendment focuses on people who in any other circumstances we might feel came within the remit of mental health legislation, where there is a clear framework in terms of what carers should and should not do.
 On the other hand, there are groups of people who would not normally be deemed to have a loss of capacity but who might go into diabetic comas or have epileptic fits. Some people with one of a range of learning disabilities might, from time to time, demonstrate challenging behaviour when an incident has been triggered. Committee members will know that the physical strength of somebody, particularly an adult, who suddenly demonstrates challenging behaviour because they have become very upset by something, seems to grow enormously. They are very difficult to handle and could be putting themselves at risk as a result of that challenging behaviour. 
 That brings in the whole issue of the restraint of the person that might be necessary in certain circumstances. However, the issue in that situation would not be as predictable as it would be for somebody with schizophrenia or degenerative Alzheimer's. In such circumstances, the carer would need to intervene, perhaps by using some form of physical restraint. If someone is in the street with a person who suddenly starts to show challenging behaviour, they have to make a split-second decision 
 about what they will do, and one cannot consult on that. 
 Would the amendment not be an additional safeguard? The person who took the action might have done what they did on the understanding that it would sustain someone else's life, and because to leave them would put their life in danger. Alternatively, self-harm could be involved. Will the Minister consider that scenario? Such people are difficult to include, but they would almost certainly come within the scope of this Bill rather than mental health legislation—either the Mental Health Act 1983 or the Mental Health Bill that is currently under consideration.

Ann Winterton: I shall probably be teased by colleagues, because I, too, am in the same position. Yesterday, the hon. Member for Sutton and Cheam told me that he could not be here today and asked me whether I would be inclined to support amendment No. 109. I am only too delighted to do so, but I did not think that I would be doing so on my own, although I hope that I am capable of it. The amendment covers the subject of my 2000 private Member's Bill, which arose because of the guidelines issued in 1999 by the British Medical Association, the doctors' trade union, entitled ''Withholding and Withdrawing Life-Prolonging Medical Treatment''.
 When mankind abandons the maxim that human life is inherently valuable, there is nothing left to limit our capacity to regard another human being as worthless. History has shown that that capacity is almost unlimited. If one considers history, certainly that of recent times, one sees that that is true. 
 We can all agree with much in the BMA guidelines, for example: 
''It is not an appropriate goal of medicine to prolong life at all costs, with no regard to its quality or the burdens of treatment.''
 No one would disagree with that; it is certainly true. It is universally recognised that there are cases in which the burdens involved in treatment do not justify the probable increase in life expectancy or quality. In such cases, not to provide or to withdraw that treatment is a proper decision. However, several passages go further and appear to say that in some cases prolonging life ceases to be a worthwhile objective, because the life has no further value. I quote again: 
''Whilst the BMA reiterates its opposition to active, intentional measures taken with the purpose of ending a patient's life, it does not hold to the view that there is an absolute value in being alive regardless of the patient's wishes or medical condition.''
 At first, the difference between those two passages may not appear significant, but there is a profound difference. If there are medical conditions that render a life devoid of value and not worth saving at any cost, we will have to determine which they are. The BMA attempts to do that. It says that the things that give value to life are, first, being able to interact with other people; secondly, being aware of his or her own existence and having an ability to take pleasure in the fact of that existence; and, thirdly, having the ability to achieve some purposeful or self-directed action or to achieve some goal of importance to himself or herself. 
 I do not think that anyone would wish to deny that those are things that give value to life and which give us pleasure as people. The trouble is that they are matters of degree. If doctors are to be asked not whether the burdens of a particular treatment outweigh the benefits, which refers to an earlier debate, but whether the patient has this or that particular ability in sufficient measure to be worth saving, we are in a different situation altogether. The question would cease to be whether the treatment is useless and become whether the patient is useless. It is all too clear where that can lead. 
 We would not want people aggressively to be kept alive when death is inevitable—we touched on some of those issues earlier—but that does not mean we expect helpless patients to die of starvation and dehydration. Most reasonable people would agree that there is a difference, which is the difference between accepting and abandoning the traditional understanding of the sanctity of life. 
 Perhaps I should lighten what I have just said. I well remember driving somewhere in the north-west and I happened to switch on my car radio, which, as chance would have it, was tuned in to Merseyside radio. Merseyside has been very much in the news recently—more than I have, but never mind. I heard the hon. Member for Crosby (Mrs. Curtis-Thomas) taking part in a programme with Dr. Michael Wilkes, who was chairman of the BMA ethics committee. It was around the time when the guidelines were produced; I think they will have to be amended somewhat, considering recent court judgments. She asked him under what conditions he would withdraw assisted food and fluid from a patient. He gave a detailed description, at the end of which Claire told him, ''You would have killed my mother.'' That was the end of the discussion. That makes the point very clearly. 
 The amendment is worth supporting. I will not go on, although I could do so for hours on this subject, because it is close to my heart. It must be addressed by the Committee and by the House of Commons. However, in the interests of brevity this afternoon, because we have so much to get through in this important Bill, I rest my case.

Claire Curtis-Thomas: I rise to support my colleague, my hon. Friend the Member for Congleton (Ann Winterton), with respect to amendment No. 109 and clause 5. I have little to add to the arguments that she advanced.
 I do not think that there is any desire to see food and hydration delivered to people where it is obviously—and where there has been advice that it is—burdensome to do so. There is a desperate concern that value judgments are made about people based on their physical state when there is little opportunity to assess their spiritual state. The two are not the same. People who are bereft of the physical capacity to express themselves are not necessarily bereft of any other capacity. Those people are my pivotal concern, as well as that of many members of the Committee, in particular because of my involvement with my mother who exhibited the type of condition to which I have 
 referred. I hope that the Minister deals with the point made by my hon. Friend and goes some way towards alleviating our concern, although I still believe that further work needs to be done in respect of future amendments on such matters.

Tim Boswell: I shall be brief. The Committee will have noticed that the amendments were not tabled in my name and I remain somewhat sceptical about them. In no sense, however, am I sceptical about their importance and, indeed, the eloquence with which they have been addressed by members of the Committee. The matter is serious and no member of the Committee would feel happy with a situation in which doctors or carers were making decisions, in effect, to deprive people of life support because they had taken a view simply on the general health of the patient without having regard to the person's mental state and ability to function as an independent moral being, to take pleasure and so forth. That is an important distinction.
 Will the Minister explain a little more about the meaning of the provision? Amendment No. 109 refers to 
''a purpose of hastening or otherwise causing P's death''.
 I presume it does so to exclude from any consideration in the mind of a doctor or carer a situation in which the motivation that this will bring the life to an end engages at all. The amendment would have been starker if it had referred to ''the purpose''. The Minister may be able to help in respect of legal definitions but, if the sole purpose of withdrawing the regime was to kill someone, that would be unlawful killing and be prohibited under existing law and, assuming that we agree that clause 52 formally enshrines the existing law on killing, there would be no difference. 
 The concern that my hon. Friends the Members for Congleton and for Tiverton and Honiton and others have expressed is that, in some way, taken with other considerations including advance decisions, such action might be construed as changing—advancing, metaphorically speaking—the law to make it easier for acts that would lead to an end of a person's life to be acceptable or covered in law.

Ann Winterton: I think my hon. Friend has said before that he believes it right and proper to withdraw food and fluids from a patient in certain circumstances. However, if the purpose of removing food or fluid or omitting treatment of any kind is to hasten death, surely that is the same as euthanasia by commission.

Tim Boswell: That is why I asked the Minister the question about ''a purpose'' and ''the purpose''. Is this something at the back of the mind of the doctor or carer that might be the natural consequence of a course of action? It was not entirely clear to me from my hon. Friend's question, but is the reference in respect of part of a course of treatment or part of the normal sustenance of a person's life otherwise? Although different, they are fine distinctions. Will the Minister pause a little on the issue of purpose? Are we considering a single purpose, one of a clutch of
 purposes or the dominant purpose? We must be clear about such important issues.
 I want to float the next matter, although with no great intensity of feeling other than just to observe it. Somewhere along the line may be a rough working distinction between withholding treatment—in the sense of not initiating a course of treatment, which, by definition, would be freshly intrusive on someone, starting the person off on a course of artificial feeding, nutrition and hydration, for example—and withdrawing a treatment that is already in place, unless there were a medical indication that the treatment had come to its end. 
 If a situation were medically stable, doctors may conclude that there is no forward progress to make. The Minister will want to speak to that. Although that may be a proper decision to take, it should not be taken in a hurry. Indeed, he referred to periods of up to 12 months, where that has been considered in the past. Withdrawing a treatment that is already in place, unless those conditions are established, is logically distinct from withholding a treatment that has not been initiated. 
 I fear that what I have said may further complicate a series of difficult operational decisions, but those are the thoughts that are going through people's minds, so perhaps I may summarise them briefly. I am less expert in this area than my hon. Friends the Members for Congleton and for Tiverton and Honiton, and I defer to their experience. 
 The primary concern is that somebody, whether a carer or doctor, will take the view that there is no purpose in a person's life. I understand that the clause is primarily concerned with carers, not necessarily with life-or-death decisions under different remits. I would not want to say such a thing about anybody's life. However, it would be of much concern if someone were to come to the conclusion that a life might as well be brought to an end. They might be thinking and saying, ''How shall we effect this? We'll withdraw something, or stop doing something, whether it is feeding the patient, or whatever.'' I would also be concerned if someone were to take that view because it was in an advance decision but not manifestly in the patient's best interests at the time. 
 I am also concerned with the question of purpose and intention. Being a lawyer, the Minister will be able to explain a little more about this. Perhaps he will tell us whether the intention is to bring the person's life to an end, whether this is about a distinct partial intention or purpose and whether there is any distinction in respect of turning off the lights of the life-support machine and terminating the artificial hydration and nutrition.

Ann Winterton: May I make a point? That is repeated time and again. The hydration and nutrition are not artificial, although there may be artificial means of delivering them. We use shorthand for things, which can be confusing.

Tim Boswell: I stand corrected and I am grateful to my hon. Friend. I was referring to nutrition or hydration delivered by artificial devices. Perhaps the
 Minister will say whether there is some practical distinction, or legal distinction in current law or in the Bill, between something that is in place and is being taken away and something that could be in place because it could be considered a treatment but is not offered. Those are difficult issues and the Minister needs to respond to them.
 Although I do not claim to be an expert in this area, it is sometimes valuable to bring a lay eye to bear. I am struck by the fact that the extremes of the argument do not now hold the field. My hon. Friend the Member for Congleton is saying reasonably that there are circumstances in which life should not be prolonged against the odds. I do not wish to caricature anything that she or others have said—that has never been her position—but she has said it clearly. On the other hand, nobody in the Committee, let alone the Minister, wishes to write people off as a matter of convenience, cost or any other simple consideration. 
 We are trying to bring things together in the middle, whereby these matters are not considered or resolved lightly and there is a proper format in which they are understood. In fairness to what has been said about the BMA's guidelines and the advice given by the GMC and so on, we are all working towards that end, even if we have not quite achieved it. Perhaps the Minister can enlighten us further.

Kevin Barron: I shall be brief. The hon. Member for Congleton said that she was quoting the BMA's guidelines. I think she means the GMC's guidelines, because that is the regulatory body for all doctors in this country. Although the BMA does have policy issues in and around this area, doctors are more likely to use the guidelines issued by the GMC, which is the statutory authority.
 Without going into too much detail, the decisions we are debating are never taken lightly. I alluded to that on Second Reading and in previous debates in the House. The guidelines that were subject to the judicial review earlier this year—there might be an appeal at some stage—might influence the current guidelines and this Bill. On Second Reading, I asked about intolerability, which Mr. Justice Munby used—and I believe that that was also asked about during Tuesday's sitting. We will have to look at that issue at some stage, and I have no doubt that the lawyers in the Department are examining it now. 
 The current best practice guidelines for doctors in this country state: 
''Where a patient lacks capacity to decide, the doctor, health care team or those close to the patient involved in making the decision, may reach different conclusions about the patient's preferences and what course of action might be in the patient's best interests. In these cases it is important to take time to try to reach a consensus about treatment and it may be appropriate to seek a second opinion, or other independent or informal review . . . In the rare circumstances where any significant disagreement about best interests cannot be resolved, legal advice should be sought on whether it is necessary to apply to the court for a ruling.''
 As I have often said, none of those decisions are ever taken lightly, as some hon. Member have described. Doctors themselves will put cases into court if they are unhappy with the circumstances that unfold in front of them. 
 It is important that we recognise that this issue is alive in society and in clinical work, and that it has been for many years. We are trying to redress the law, as Justice Munby did, and as many others have and will do in the future. We should realise that there are strict codes and guidelines that clinicians work with in what are often—probably in all cases—very distressing circumstances.

Angela Browning: I want to respond to what the right hon. Gentleman has said. We cannot lightly dismiss the number of elderly people who come into the sphere of the health services and who just slip away, for many of the reasons that have been described in Committee and on Second Reading. I raised this matter in last Tuesday's Committee sitting, after which I was grateful to receive a telephone call from the Royal College of Nursing assuring me that new schemes are being put in place to address that very problem. There is recognition of what has been happening.
 Let us take as an example a busy orthopaedic trauma ward with elderly people who have the common fractures that the elderly get—for example, fractured necks of femur. Those people are often very frail before they undergo the operation. In such cases, we have considerable evidence—not just anecdotal—of nursing care at that point needing to be much more focused on what that person can or cannot do for themselves.

Kevin Barron: I hope that the hon. Lady is not saying that I am being dismissive. I was just trying to describe the current guidelines for clinicians. I do not disagree with her at all. My mother-in-law died from Alzheimer's disease in the 1980s. She fractured her hip on the ward—it was not a particularly good ward; I think they were called Nightingale wards at that time in Rotherham district general hospital. My wife and I and the rest of the family lived with Nancy's conditions for many, many years before she died.
 I accept that there are things that are getting better all the time; I would be amazed if there were not. The whole Bill is about trying to get best practice into all areas of care and treatment. That is what we are trying to do, as I understand it. Some things will be better than in the past; I accept that entirely. I do not for one minute dismiss my experiences, those of my family and those of the thousands of people who have been, and will be for many years to come, involved in the care and treatment of people without the capacity to make their own decisions. That is the last thing that any of us in Committee would want to do. We need to make sure that we go forward in a proper and caring way to look after the interests of people in the future—

James Cran: Order. Mr. Barron, that is too long an intervention. Of course, you will have the opportunity to make another speech later, if you so choose. Mrs. Browning, I think that you had the Floor.

Angela Browning: Thank you, Mr. Cran, but that was actually all that I wanted to say.
Mr. Boswell rose—

Angela Browning: I give way to my hon. Friend.

James Cran: I am not sure that I should allow that, but okay.

Tim Boswell: I can make what I say a separate speech if you wish, Mr. Cran.
 I rise to say briefly, and not by way of reproof to my hon. Friend, who made a valuable point, that crucial to the issue is the question of not omission, but inadvertence. Clearly, there may be cases in which such a medical situation occurs through inadvertence, and that must be indefensible. In other cases, it happens by, shall I say, contrivance because it is felt that the person may be coming towards the end of their natural life or—this is not a phrase that I would tolerate or find comfortable—their life has no further purpose to it. That would involve a different set of considerations, although both cases are equally important. The only point that I would integrate into both is that they would have the same effect on the person involved.

James Cran: It is your turn to speak, Mrs. Browning.

Angela Browning: I will now sit down.

Tom Clarke: But not before giving way again, I hope?

James Cran: One last time.

Angela Browning: I was right about the Golden Labrador, Mr. Cran. I give way to the right hon. Gentleman.

Tom Clarke: I am grateful to the hon. Lady. I apologise to you, Mr. Cran, because I was not sure who was giving way to whom earlier.
 When the hon. Lady referred to the Royal College of Nursing, I thought—and this is my fault—that she would move on to tell us its view of the Bill. Can she do so? What she said was extremely interesting. Did the college express a view on the amendments?

Angela Browning: No. Representatives of the college heard my comments in Committee on Tuesday and sought to reassure me about the action being taken to deal with overall responsibility for nutrition and hydration for in-patients.

James Cran: I think that it is your turn now, Minister.

David Lammy: I begin by telling hon. Members that the Royal College of Nursing said that it warmly welcomed the introduction of this Bill, which would enable many people to make decisions for themselves and provide protection for vulnerable adults.
 I must deal squarely with much that has been said. We put best interests at the heart of the Bill and we have had much discussion about them. In talking about the clause and the amendments, it is important to say that the clause does not change the law on negligence. It does not affect liability for a failure to provide treatment. Instead, the clause provides a defence, as I thought I made clear earlier. The provision is not a blanket authority to act, and certainly not an authority to act in a way that none of us would consider desirable. Before a person acts, it is important that they establish whether the other person has capacity and, when acting, take reasonable 
 steps in that person's best interests. A doctor who withheld artificial hydration and nutrition, for example, causing death when he had a duty of care that required him to provide those things, would be liable for gross negligence manslaughter. The proposed additions to the clause would not strengthen or change that fact in any way. 
 On Tuesday, the hon. Member for Tiverton and Honiton on Tuesday said a great deal about the treatment of the elderly in our NHS. I said nothing about that this morning, but we have heard much said again this afternoon. The NHS employs 1.3 million people, most of them providing wonderful care every day throughout the country. Anyone going to the Greenfields ward in St. Anne's hospital in my constituency will see elderly people being cared for in remarkable ways. It is unacceptable to suggest that the elderly people of this country should be worried. Survey results show that 91 per cent. of people who experience care and treatment in the NHS are satisfied with it. 
 The Bill is not partisan, but it is important to make the point that the Labour Government introduced the national service framework for older people, for the first time setting high common standards in this country. In fact, elderly people are now getting better care in the NHS. It is important that we have this debate in that context.

Angela Browning: When we have discussed care of the elderly in debates on the Floor of the House, not in the context of this Bill, I have made it clear from my own experience what excellent care was provided for my mother when she was in Wokingham hospital. The standard of nursing was second to none. We are not trying to say that all nursing care is bad, but that there is a problem with the care of the elderly in hospitals. The fact that the RCN is now embarking on a national programme to sort out the problem is proof in itself that something needed to be done nationally.
 I have described my own family's experiences on three separate occasions with three different elderly relatives. My hon. Friend the Member for Congleton has given the Committee the benefit of her opinion, and the hon. Member for Crosby has given a moving account of the treatment of her mother. We have to grasp the fact that, whatever the aspirations of any party in Government may be, the issue that we are discussing is not partisan. We are dealing with what is actually happening—

James Cran: Order. This is now a speech, I fear.

Angela Browning: You are right, Mr. Cran; it was.

David Lammy: I said what I said about the treatment of the elderly in our hospitals. I am not suggesting there will not be occasions on which a small number of the 1.3 million people involved let the system down. However, the overwhelming thrust of policy is towards improving standards. We have all had experience of the elderly in our hospitals. I say that gently, but although I am proud of the poor socio-economic background from which I come, I had many older relatives who are no longer with us because of that
 background. I, too, have some experience of that situation.

Kevin Barron: My hon. Friend is right to say that. The circumstances that I described of a member of my family in Rotherham hospital are completely different from the service that my constituents have now. Shortly after the 1997 general election, a private finance initiative hospital was built in my constituency and took over the old geriatric wards. Now it is like going into a hotel. It is wonderful to see people being treated in such a way, as opposed to the old Nightingale wards that we had before that hospital was built.

James Cran: Before the Minister speaks, let me say that I do not want this to descend into a back-and-forth between the two sides of the Committee about standards in the national health service. We must get back to the amendment, and I look to the Minister to do that.

David Lammy: You are right, Mr. Cran. It is important to stress that clause 5 applies more widely than the provision of treatment at the end of life. It covers all care and treatment. Taking someone for a car trip to the seaside, cutting someone's hair, dealing with an in-growing toenail, or taking them shopping, are all acts connected with care and treatment, but they are not about sustaining the end of life. It is important, in the context of the amendments, that we understand that. In ensuring that we have proper safeguards in place for end-of-life decisions, we must take care not to take away important protection for millions of everyday caring actions that need to be done for people who lack capacity.

Tim Boswell: I do not intend to return to the arms race and the claims and counterclaims that were made earlier, but perhaps I may take this opportunity to invite the Minister to correct a misconception—or rather, a misrepresentation—that I may have given earlier, as he talks about the purpose of the clause. It covers, of course, the whole spectrum of care and does not exclude professionals—they are included, as is everybody else. It is only in relation to life-threatening or life-relevant decisions that later clauses might kick in. We are talking now about the whole spectrum of personal care—and I see the Minister nodding.

David Lammy: That is very much the case.
 Of course, we recognise that we need to be especially sure that a person's best interest is being respected in relation to decisions about life-sustaining treatment. We all know that clinicians, parents and families have to make difficult decisions every day, some of which may affect the difficult situations at the end of someone's life. Such decisions might include whether to provide invasive cancer treatment for an elderly frail person who is close to death. Those are difficult decisions. 
 For example, when someone is in their mid-90s, a judgment call might have to be made about whether a last round of chemotherapy will be relevant. That is what the Bill is about. That decision should be made in their best interests—or, as some of the amendments are indicating, is the Bill about chemotherapy being given at all costs? It might be a burdensome operation, 
 with doubtful benefit and side effects that the person expressly does not want. Whatever the decision, the key interest remains the same: what should be provided and for how long? 
 Clearly, we want to do the best for each person. My hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth), who is not in his place at the moment, was clearest about emphasising those individual decisions, and emphasising that the assessments must be made case by case. We must ensure that we do not force aggressive treatments on people in their last days or hours. People at the end of life have a right to die with dignity and to be protected from distress. I am sure that hon. Members agree that prolonging life at all costs, regardless of intense pain and suffering, should not be our desired aim. 
 For instance, it is well known that powerful pain-killing drugs may have the so-called double effect of shortening someone's life. They could also give the palliative care that the doctor wants to provide. That cuts to the issue that was raised by the hon. Member for Daventry about purpose. A dual purpose is involved. The intention is not to bring about death, but to alleviate pain in what might be someone's last few hours. 
 We must ensure that the Bill is drafted so as to enable medical personnel and others to act in a person's best interests, giving treatment and care that is appropriate to the individual case. I have great sympathy with hon. Members who are concerned about protecting vulnerable people and I appreciate their commitment to ensuring that the Bill delivers that in practice. I also appreciate their concern to ensure that doctors and other professionals are unable to override a legitimate decision made by an attorney or a deputy. 
 However, I recognise the finely balanced decisions on best interest that doctors already have to take; they take them every day of the week. That is why talking about this issue is sometimes frustrating. The Bill will improve the situation. The hon. Member for Congleton—I almost said ''Doncaster, Central'' because there are two Wintertons on the Committee—referred to the example given by my hon. Friend the Member for Crosby when she spoke about her mother. The Bill says that when someone is blinking, they are able to give consent. It would enable the sibling or partner to be made an attorney for health and welfare decisions, and have the standing to make those difficult determinations with doctors. The Bill requires consultation; it says that doctors must consult and decisions cannot be made in isolation. In that sense, it improves on the current situation.

Claire Curtis-Thomas: One of my concerns is that there is a discreet difference between the treatment of different people. I do not think that there would be many questions about whether babies born today who are clearly incapacitated should be hydrated or fed. The presumption would be in favour of waiting and seeing, and establishing how they get on. Many relatives of elderly people who suddenly find themselves incapacitated would hope that the same
 view would prevail: ''Let's hydrate and feed, and wait to see how they get on.''
 However, there is a genuine worry that that does not happen; judgments are made for the elderly that are not so quickly made for babies, who may be in exactly the same condition. There is a ''Let's wait and see'' policy for the newly born, but the policy for the elderly is, ''You are 77, and we know what the outcome is going to be, so why wait?''

David Lammy: My hon. Friend says that that happens, but it is our job to ensure that such things are limited. I mentioned the national service framework for older people, and we are making advances in improving care. My right hon. Friend the Member for Rother Valley is clear that there are guidelines for such issues, and that the determinations made every day are by and large in accordance with best interests. We are making an improvement.
 I cannot put my hand on my heart and say that bad decisions are not made, but I can say that this Bill would considerably improve the situation. As I said, I appreciate the concerns that doctors and other professionals should not be able to override legitimate decisions made by an attorney or a deputy, but I recognise that doctors already have to make finely balanced decisions on best interests, and that they must continue to make them. However, the Bill would improve the safeguards surrounding such decisions. 
 It is important to remember that 1 million people are treated in the NHS every 36 hours. Some of them will be elderly, and a few will be reaching the end of their lives. It is our commitment to ensure that the right decisions are made about the care of those who lack capacity. The principle of best interests is central to that, and the acts in connection with care that we are discussing are about providing a defence, but only when appropriate, when difficult decisions have to be made for the benefit of such individuals. On that basis, I hope that the hon. Member for Tiverton and Honiton will withdraw the amendment.

Angela Browning: The Minister did not focus on the point addressed by my amendment, which was about people who lose capacity unexpectedly and for a very short time. Perhaps he could address that point.

David Lammy: I thought I did. We have talked about fluctuating capacity. Both the ''best interests'' clause and acts in connection with care allow decisions to be made on that person's behalf in any regard.

Angela Browning: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Tim Boswell: I beg to move amendment No. 139, in
clause 5, page 3, line 43, at end add— 
 '(5) Nothing in this section authorises P being deprived of his liberty within the meaning of Article 5(1) of the ECHR.'.

James Cran: With this it will be convenient to discuss amendment No. 177, in
clause 5, page 3, line 43, at end add— 
 '(4A) Nothing in this section authorises the admission of P to, or detention in, NHS accommodation under section 36 where the purpose of such admission or detention is for the assessment of, or to provide treatment for, P's mental disorder unless: 
 (a) the NHS body has requested the local social services authority to consider whether an application for P's admission to, or detention in, NHS accommodation under the Mental Health Act 1983 ought to be made and 
 (b) the local social services authority considers that admission or detention under the Mental Health Act 1983 is not appropriate.'.

Tim Boswell: I have moved the amendment on behalf, as it were, of the Liberal Democrats, as they are not here. Although I have not discussed it with the hon. Members for Sutton and Cheam and for Chesterfield (Paul Holmes), whose absence I have already said I regretted, I think I see what is going on. It would be helpful to have the Minister's speaking notes on the record, and some brief consideration of this matter.
 Amendment No. 139 begins to pave the way on an issue that has recently come to attention in relation to the Bournewood gap. My hon. Friend the Member for Tiverton and Honiton is a greater expert on that than I claim to be, and I suspect that that also applies to the hon. Member for Sutton and Cheam, who originally tabled the amendment. The amendment would mean that nothing should authorise the deprivation of ''liberty'' in the meaning of article 5.1 of the European convention on human rights. 
 In anticipation of the Minister's defence of his position, I should record that he has given a certificate of compliance with the convention at the beginning of the Bill. However, I should also record, without prejudice, the work done by the Joint Committee. The Joint Committee on Human Rights has also considered the Bill, and I am slightly surprised that it had no observations at all to enter, which is unusual and did not apply to the Gender Recognition Act 2004, which the Minister and I debated some time ago. In a sense, the Minister had a clean bill of health—and anyway he would not wish an incompatibility to arise. 
 Amendment No. 177 deals with circumstances in which incompatibilities might arise. First, the force of the amendment would preclude the admission of P to, or detention in, NHS accommodation under section 36, unless the NHS body had requested social services to consider whether it was appropriate. Secondly, where a request was been made, there would be no admission if the local social services authority considered it inappropriate. 
 I have one technical reservation about the drafting of the amendment—as I do about some of mine—because certain circumstances could arise—

Angela Browning: My hon. Friend mentioned the Bournewood gap, which the Joint Committee recommended that the Government seek to close. At that point, however, as the Committee will be aware, we had not heard the European Court judgment on Bournewood, which emerged on 5 October. It may be helpful for him to know that I intend to table a series of amendments to clause 28 to address the Bournewood situation.

Tim Boswell: I am grateful to my hon. Friend for relieving me of that burden to some extent. I hope that she will table those amendments, because it is right that the Committee should discuss them. I hastily add that they should be discussed at that point, subject to the ruling of the Chair, because that would be a better time to do so.
 As sometimes happens with my amendments, I have a reservation about the drafting of amendment No. 177. It does not take into account circumstances in which admission to a mental hospital, or a mental treatment regime, would be required urgently and could not have gone through social services, so they could not have ruled on it, one way or another. I am not sure whether the amendment is drafted to be comprehensive, but there is an issue there: the action would be ruled out if consent were withheld, but if consent had not been determined would it or would it not be ruled out until it had been withheld? There is, perhaps, a technical issue there. 
 A number of us, whether or not we are expert in this area, are conscious that there is a difficulty at different ends of the spectrum. If a person has capacity and may seek treatment, it is open to them to make decisions. On the other hand, if a person is—to use my shorthand term, which is probably wrong—''sectioned'' or detained for the safety of others as much as for their own that is a comparatively definite situation under the Mental Health Act 1983, although not an easy one. There are safeguards for that process under existing mental health legislation, as well as under the draft Mental Health Bill. However, there are questions about the safeguards that exist when a person is on a course of treatment and is not able or permitted to leave it, but is not formally detained. 
 This is an important issue; it is about the deprivation of liberty. It would be useful if the Committee were to start addressing it now, and if the Minister were to give us an interim response to the amendments that have been tabled, in anticipation of having another go at it when we discuss later amendments.

David Lammy: I have no doubt that the amendments were tabled in the context of the Bournewood judgment, as the hon. Gentleman said. That case addressed the question of whether Mr. L's detention in hospital contravened his human rights under the European convention on human rights; hence the reference to that convention in amendment No. 139.
 I entirely understand the hon. Gentleman's concern to ensure that the Mental Health Act 1983 is always used when appropriate and that the Mental Capacity Bill takes on board the lessons from the recent European Court of Human Rights judgment in the Bournewood case. I understand the concerns of hon. Members, particularly those who have campaigned on this case for some time now. We are seriously examining the implications of that judgment, but they will understand that as the judgment was so recent—it was made on 5 October—and as this is a highly complex area, it is too early for us to reach firm conclusions as to whether it has any impact, particularly on the Bill.

Angela Browning: I do not want to get into the Bournewood case now, as I intend to table further amendments and I hope that we can deal more extensively with it under clause 28. However, I will repeat for the benefit of the Minister and the Committee something that I said to him privately this morning. Several Committee members also sit on the Committee scrutinising the Mental Health Bill, which started to take evidence yesterday. There was a clearly expressed concern on the part not just of the Committee but of witnesses that the Bournewood case will have to be dealt with either in this Bill or in the Mental Health Bill when it comes out of draft. There seems to be a lot of concern that it might fall down the gap, because this Committee might not address it, and instead leave it for the later mental health legislation.
 That concern creates all sorts of difficulties. I know the Minister's Department is working hard on the judgment, because it is recent, but we need guidance as to whether the matter will be accommodated in the Mental Capacity Bill, or whether the Department intends it to be addressed under the mental health legislation.

David Lammy: There is no likelihood of its falling down a gap, because it is a Strasbourg decision, so we have an obligation to ensure that we are in compliance with it. The consideration is continuing. The hon. Lady is right to say that the Mental Health Bill is currently receiving scrutiny, and we shall ensure that if we need to take steps they will be taken as speedily as possible.
 The amendment also raises points connected with the European convention on human rights. I think that the hon. Member for Daventry knows what I am going to say, and if he would like me to put it on the record, I will. Section 6 of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way incompatible with a convention right. Section 3 of the Act provides that, so far as is possible, primary legislation—wherever enacted—must be read and given effect to in a way compatible with the convention rights, including, obviously, article 5. 
 As is required, I have made a statement under section 19(1)(a) of the Human Rights Act 1998 that the Bill is compatible with the convention rights. It follows that nothing in the Bill can authorise actions contrary to any part of the European convention on human rights. All members of the Committee will understand that the Bill is empowering, and very much in the spirit of more general human rights. 
 Amendment No. 177 would require the national health service body concerned to request a social services authority to give formal consideration to the use of the Mental Health Act 1983, and for it to confirm that it was not necessary, before the provisions of the Mental Capacity Bill could be used. I am, of course, sympathetic to the aims of the amendment, but the introduction of an independent consultee already provides for the concern about patients who have no relatives or friends, and the need for consultation.

Tom Clarke: Given the views of the hon. Member for Daventry on drafting, I am prompted to ask about suggested new subsection (4A), which specifies that
''Nothing in this section authorises . . . admission . . . unless . . . the local social services authority considers that admission or detention under the Mental Health Act 1983 is not appropriate.''
 Does that reflect the role of social services in such matters?

David Lammy: It definitely affects social services, because such matters would be covered under the Mental Health Act 1983—I hope that that is helpful to my right hon. Friend. Social services operate very much in proximity to that Act.
 As I was saying, in creating the role of an independent consultee and in laying the duty for social services or the NHS to have that independent consultee, we have provided support for vulnerable people who would fall within that category, although clearly some vulnerable people will be outside that category, too. I ask the hon. Member for Daventry, bearing those points in mind, to withdraw the amendment for now and consider later whether the Government's response meets his aims.

Tim Boswell: I am grateful to the Minister. He has more or less conceded that we have not received a full response. It is probably not reasonable to expect one at this stage, and it will probably be better to wait. Subject to the sort of discussions that we had about best interests that involved representations from interested parties, and having heard about the subsequent tranche of amendments promised by my hon. Friend the Member for Tiverton and Honiton, and being ready to listen to representations from all parts of the Committee, we will be content with such a process.
 I must emphasise that we cannot allow the issue to go unaddressed between the two Bills—a point that the Minister has already conceded. An early strategic decision will have to be taken about which Bill will deal with the matter, and obviously, discussions will continue between hon. Members and interested parties. Many people are already beginning to work on such matters. I have supplied material to the Minister privately, because it will help to inform the debate. Rather than commit ourselves at this stage, it is better to stand back and say, as the Minister has, that we recognise that there is a problem. We do not want to rush to a conclusion, but we cannot put it off indefinitely because there is an obligation to respond both to the Strasbourg judgment and to the real problem in the real world, which will have to be tackled. With those comments, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Claire Curtis-Thomas: The Minister has not really addressed my earlier question relating to the clause, so I will repeat it, and hope for an answer this time. Will D be provided with adequate information from the
 relevant authorities to make an informed decision for P?

David Lammy: Yes.
 Question put and agreed to. 
 Clause 5 ordered to stand part of the Bill.

Clause 6 - Section 5 acts: limitations

Tim Boswell: I beg to move amendment No. 98, in
clause 6, page 4, line 6, after second 'is', insert 
 'at that time and in relation to the circumstances of that time'.

James Cran: With this it will be convenient to discuss the following amendments: No. 166, in
clause 11, page 6, line 22, after second 'is', insert 
 'at that time and in relation to the circumstances of that time'.
 No. 106, in 
clause 20, page 12, line 23, after 'act', insert 
 'at that time and in relation to the circumstances of that time'.

Tim Boswell: Perhaps I may again stand in for the absent Liberal Democrats and move the amendment. In this case, it is easier to divine the motives of those who tabled the proposal, which seem to me entirely admirable. We are moving to the limitations on section 5 acts. They seem inherently reasonable, which is why we do not propose to amend them heavily, although I have some small queries of my own.
 The amendment tabled by Liberal Democrat Members is entirely congruent with the Bill's approach. It involves whether there is functionality for the individual person, so that acts done on their behalf because they do not have mental capacity should be relevant to the time and the circumstances, rather than being covered by a general dispensation that says, for example, ''You, the carer, may do what you like for the person because they lack mental capacity,'' or, ''You need never consider whether they might have mental capacity.'' That is important where restraint or any degree of coercion are concerned, which is, as I construe it, more or less the substance of clause 6. That is something none of us likes. We would not choose to be in a position where it was necessary to cut across somebody, because it might indeed intrude on their feelings. It has to be done appropriately and only in those conditions. 
 As I understand these amendments, they simply put down markers to say that any act should be proportionate and circumstance specific, and there should not be a general understanding that the carer may intervene to restrain somebody or restrict their liberty. That is an admirable objective. Perhaps the Minister will respond.

David Lammy: I understand, of course, that hon. Members are concerned to ensure that restraint of people who lack mental capacity is considered carefully. By ''restraint'' we mean both the use of force and the restriction of liberty or movement; it should not be employed lightly. The Government take the matter seriously.
 Under the Bill, restraint is permitted only if it is necessary to prevent harm to the person, the act itself is in the person's best interests, and, I emphasise, the restraint used is proportionate to the likelihood and seriousness of the harm. That is a restatement of the common law rules, but putting them in clear and comprehensible statutory form will help everyone to understand them and be clear about what they have to do. The hon. Member for Daventry wants to ensure that restraint may be justified only in relation to a very tight set of circumstances. I understand his concern, and I hope I can reassure him that the Bill's provisions are already situation specific. I shall explain how. 
 Capacity is defined by whether, at the material time, the person is unable to make a decision. Clauses 11 and 20, together with clause 5, provide a defence in relation to a particular act only when all the relevant conditions have been satisfied. They do not provide an ongoing defence for a person using restraint. However, it makes sense for people to have that power in certain circumstances. If a person with dementia is likely to wander out of a house, it makes sense for her carer, attorney or deputy to be able to shut the door to protect her from harm each evening without having recourse to formal procedures. 
 If there is any doubt about the use of restraint, the act may be challenged as not being in the person's best interests, either through existing dispute resolution mechanisms or by making a complaint to the public guardian. In the case of deputies, the court may decide to amend or indeed revoke the deputy's authority. Clause 22(3) provides that a court may revoke a lasting power of attorney if the attorney is not acting in the person's best interests. 
 I hope I have reassured hon. Members that the Bill's provisions for restraint are already adequately situation specific. Neither the clauses on attorneys nor those on deputies provide an ongoing authority to use restraint. I hope the hon. Member for Daventry withdraws the amendment.

Tim Boswell: I am entirely satisfied with that explanation. No doubt those who tabled the amendment will wish to study the record on the matter but, ad interim, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Tim Boswell: I beg to move amendment No. 18, in
clause 6, page 4, line 12, after 'restricts', insert 'or threatens to restrict'.

James Cran: With this it will be convenient to discuss the following amendments: No. 19, in
clause 11, page 6, line 28, after 'restricts', insert 'or threatens to restrict'.
 No. 20, in 
clause 20, page 12, line 29, after 'restrict', insert 'or threatens to restrict'.

Tim Boswell: I tabled these amendments myself, and they are in the same spirit as those that have just been discussed. We seek the Minister's clarification, and want to assure ourselves and satisfy the Committee that the safeguards are adequate, because we are talking about restraints on a person. They need to be
 proportionate, act specific and implemented reasonably.
 The three identical amendments are about restricting liberty of movement. The issue came to my attention when I first read the Bill. I noticed that under subsection (4)(a), someone who uses restraint is described as one who 
''uses, or threatens to use, force to secure the doing of an act which P resists''.
 Paragraph (b) mentions restricting ''liberty of movement''. Threatening to restrict liberty of movement is not specified. That may be because common law has not got there or because I am making an inappropriate analogy, but I would like the Minister to explain why it is not specified and whether it might be. 
 In the real world, it would be quite possible for someone who has become exasperated—not necessarily someone malicious—to say, ''And if you insist on doing that, I'll take away your Zimmer frame and you won't be able to use it and get around the room; your liberty will be restricted.'' That is not by itself a restriction of liberty, because it is a threat. None the less, it is an aggressive act towards the person, even if it is perhaps understandable in difficult circumstances. However, such threats should not be condoned without an explanation. Will the Minister speak on that concern?

David Lammy: I understand the hon. Gentleman's worries. Sometimes, threats can be very unpleasant and frightening to those who lack capacity—as frightening as the use of restraint. Unfortunately, the amendment would be unworkable for legal reasons. Even though it is a tort in law to threaten to use force, threatening to restrict the liberty of someone with or without capacity is not a civil wrong that our law recognises. The threat to restrict liberty of movement would not count as an unlawful act of restraint for which a person needed special authorisation under clauses 5, 6, 11 or 20.
 For example, a carer might tell someone with learning disabilities that they will make him stay in his chair until he has finished his dinner. That might be unpleasant, but it is not an unlawful action, so the amendment would have no effect. That does not mean that in those circumstances we would not seek to ensure that the appropriate guidelines were issued in the code of practice, in addition to the appropriate information on support in circumstances of bullying. Such situations are not desirable.

Tim Boswell: I am grateful to the Minister for his elucidation. I am sadder, wiser and slightly concerned that the situation that has been described might arise, although I daresay it would not be appropriate to establish in the Bill a new legal precedent of the kind we are discussing. He has helpfully given me a way out, however, which will enable me to seek the Committee's leave to withdraw the amendment.
 It might not be a tort and it might not be possible to put it in the way that I did, but I firmly hope that my suggestion will be in the draft code. I have not had a 
 chance to go through the code today to check whether it is. Acts that, as the Minister perceptively said, constitute bullying, even if they do not amount to a formal tort in respect of a person, are absolutely unacceptable. Possibly, they could be addressed in other ways, although that may require a degree of legal ingenuity. 
 I presume that if bullying were to become endemic in a particular case, it might eventually amount to a criminal act of negligence, but I do not know. I note some interest among those on the Labour Benches and the Minister might care to reflect on the matter. We all understand that such a situation is not what anybody wants from this Bill. I am sure that he does not want it, nor would he condone it happening. If we found a way of making it clear that it is offside, other than the idea I floated, I would be happy. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Tim Boswell: I beg to move amendment No. 21, in
clause 6, page 4, line 20, after 'act', insert 
 'or causing any act to be carried out'.
 We are rattling through, and so we should. I pause on this point, however, to ask who is doing the act that is referred to. Somebody might have an agent to do an act for them in relation to a person that they were not doing themselves. That might be entirely sensible. For example, a nurse might be in my household when it was necessary to restrain somebody. I am not qualified as a nurse and I might regard it as sensible for them to carry out the restraint; I might not trust myself to do it appropriately. 
 Equally, I am concerned that somebody might be malicious, or might have some temporarily malicious motive, and might seek to avoid committing a tort on a person by trying to get a third party to do it on their behalf. Alternatively, there might be a joint act, where two people are involved in a restraint operation. I wonder whether the Minister will take us through that little set of circumstances. I assume that the matter is about not just who physically lays hands on a person, but someone commanding or requiring that to happen. I wonder whether he will explain how that works.

David Lammy: I take the hon. Gentleman to clause 6(6), which is included to ensure that despite the prohibition on clause 5 acts in clause 6(5), life-sustaining treatment, or acts necessary to prevent a serious deterioration in the condition of a person who lacks capacity, can safely be given without fear of liability if there is an issue that needs to be resolved by the Court of Protection. That is probably where the medical staff take a different view of best interests from an attorney or a deputy.
 The protection offered by clause 5 is aimed at those who do acts in connection with care and treatment. We have already discussed that. Clause 5 provides a defence to the doing of an act that might be unlawful . 
 The protection offered by clause 6(6) is necessary because of the prohibition on doing a clause 5 act that conflicts with the decision of an attorney or deputy, as set out under clause 6(5). It is unlikely, for example, that an instruction to a member of staff to do an act 
 could itself amount to an act to which clause 5 would apply. Therefore, the prohibition on clause 5 acts in clause 6(5) would not apply. Even if such an instruction could amount to a clause 5 act, it would be covered by clause 6(5) in any event, because it would be an ''act'' in its own right. For that reason, we think it is caught by clause 6(5). I hope the hon. Gentleman will withdraw his amendment.

Tim Boswell: That was a most eloquent explanation, which allayed one of my fears at the expense of creating another. I appreciate that we cannot proceed backwards through the Bill, but the logic of what the Minister has said is that there could be a problem with clause 5 acts. If such acts were commissioned by somebody, the commissioner would not be protected, even if, as I understand from what the Minister has said, the person who carried it out might be.
 That would not be an extraordinary situation. Leaving aside the context of a threat to life, as set out in clause 6, about which the Minister has spoken, somebody might say, ''Will you do this for me?'' or, ''It's my day off. Could you do the care act?'' Someone might instruct a person to do something, and might not carry out the act themselves. It should be clear that, assuming that the act is decent and done in good faith, neither the person who commissioned the act nor the person who carried it out should be subject to an action in tort. Perhaps we cannot resolve the issue, and I am not sure that we should jog back and debate it extensively—but does the Minister understand what I am concerned about?

David Lammy: I am not sure that the commissioner would necessarily be committing a tort. The issue relates partly to the debate that we had a little earlier, and may be illustrated in the letter that I undertook to send to the hon. Gentleman.

Tim Boswell: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Tim Boswell: I slipped up and did not table an amendment about this issue, but will the Minister consider subsection (7)? It states:
'' 'Life-sustaining treatment' means treatment which in the view of a person providing health care for P is necessary to sustain life.''
 My difficulty with that is in the reference to ''a person''. As the Minister has said, there will often be a large number of people in a team providing health care for a person, certainly when that person is suffering from a life-threatening condition. Is the Minister saying in effect that the view of a single person in such a team would constitute an absolution from the provisions of subsection (5), or is he saying that the team would have to come to a collective decision? That is a potential difficulty, which the Minister might like to consider.

David Lammy: May I consider it?
 Question put and agreed to. 
 Clause 6 ordered to stand part of the Bill.

Clause 7 - Payment for necessary goods and services

Angela Browning: I beg to move amendment No. 107, in
clause 7, page 4, line 27, leave out 'must' and insert 
 'should, with consideration to his means'.
 I am mentioning this amendment just so that the Minister can clarify something. It was tabled by the Liberal Democrats, and would mean that payment for necessary goods and services should be made 
''with consideration to his means''
 by the person who lacks capacity to whom they are supplied. Will the Minister comment on that? A wide scope of goods and services is covered by the clause, and normally many of them would be subject to some form of means test to establish whether they should be provided by social services, with or without a contribution from the person. Will the Minister clarify the intention and say whether he feels that advocacy services, which might be needed, come within the scope of ''payment'' under the clause?

Tim Boswell: To save my having to make a point on clause stand part, I shall say now that there is a difficulty in the amendment, which is why I did not rush to move it. It creates an interesting principle whereby goods and services, whether or not they are necessities, would be charged for differentially according to the means of the person. We all know people who are relatively poorly off, and I am sure that they would like to get their milk at half price, but unless there is a specific provision—by way of tokens, vouchers or some other system—that is not how the market works. I am not sure whether the Liberal Democrats had that in mind when they tabled the amendment. Charges should be reasonable, but they should not be stepped by reference to means.
 There is another separate problem with persons who may not be at arm's length from each other. If the milkman was providing the service and happened to know the family, they could—and sometimes would—charge more, rather than less, and seek to get some advantage from the situation. The common law principle probably avoids that difficulty, so that nobody would be able to rip others off in that way. Perhaps the Minister will reassure me and make me feel a bit happier about that.

David Lammy: The amendment would mean that the person lacking capacity would not have to pay a reasonable price for necessary goods and services, but only a price that he could afford; the contractor would need to take his means into account when setting the price. I appreciate that the hon. Gentlemen who tabled the amendment wanted to ensure that when a person who lacked capacity entered into a contract for necessary goods and services, his ability for them should be taken into account. However, the clause also protects individuals and organisations supplying goods or providing services, including businesses and tradesman, who are entitled to receive a reasonable price when they provide the necessary goods or services to someone who lacks capacity.
 I see no need for a contractor to expect to set prices differently for a person who lacks capacity. Just because someone lacks capacity, that does not mean that they should pay less for goods and services. That would be contrary in presumption and feel to the way in which we generally handle things in common law. That does not mean, however, that if someone enters into a contract that they did not understand, it would be voidable under English law. There is a distinction for necessaries, which is the category into which such a contract would fall.

Angela Browning: We are talking about people who lack capacity, and one assumes that the contract and purchase are made by a third party on their behalf, because they would not be contracting directly with people. My interpretation of the clause is that the third party is making the contract or purchase for P. For example, if D were looking at a range of wheelchairs for P, and there were certain categories of wheelchair that they would get assistance to purchase, it would be inappropriate for D to contract on P's behalf for something that was outside their means. In addition, however, where, because of means-tested benefits, it was applicable for them to have support in purchasing such a thing, that would need to be taken into account. I am not making myself clear, Mr. Cran, and I am sorry about that—and I can see that you are trying to encourage me to wind up. It would not be acceptable for D to purchase a super-duper catalogue wheelchair well in excess of the needs, because P's means would not cover it, and something lesser might do.

David Lammy: No, the Bill does not allow a third party to contract without formal authority—and we shall go on to discuss that, in terms of becoming an attorney or deputy. Clause 7 allows a contract to continue with the person who lacks capacity, but in fact, the third party can pay for that contract under clause 8. For the reasons that I have set out, and given our earlier discussion about fluctuating capacity and other matters, it is not right that someone who enters into a contract for necessary goods should have to pay less than the rest of us.

Angela Browning: That has clarified things. Thank you.

James Cran: Is the hon. Lady withdrawing the amendment that she moved?

Angela Browning: I did not mean to move the amendment; it was simply a probing, clarification exercise. However, if I need to do withdraw it I shall.

James Cran: You did indeed move the amendment.

Angela Browning: Then I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 7 ordered to stand part of the Bill.

Clause 8 - Expenditure

Tim Boswell: I beg to move amendment No. 22, in
clause 8, page 4, line 36, at end insert 
 'and D shall keep appropriate records and receipts to validate any such claim to reimbursement'.
 I am conscious of the hour, so I shall be brief. The amendment is part of a sequence of probing amendments designed to enable us to understand how such important clauses will work. There will be other opportunities to discuss powers of attorney and the implications and obligations at a later stage. The Minister will know—indeed, the chairman of the Court of Protection has already made it clear—that there are real worries that people already in fiduciary positions who undertake matters on behalf of other persons may abuse that trust and, sadly, do so from time to time. I appreciate from the explanatory notes and the text of the Bill that the clause is set in the context of necessary acts under clauses 5 and 7. It is not self-evidently about huge expenditure, although over time it could involve significant amounts. 
 The amendment would provide that some appropriate accounts should be kept. Clearly, if a situation arose in which a financial attorney needed to wash up, that would be a reasonable request to make. The financial attorney would say, ''If you can't provide the receipts, how can we pay you?'' Presumably, there might have to be litigation about such matters. As a matter of good practice if nothing else, some basis of receipts and accounting should be available to provide an audit trail for the expenditure, because by definition, the person involved lacks capacity and needs to be protected.

David Lammy: When someone has formal control over another person's finances, is a donee, has a lasting power of attorney or is appointed a deputy of the court, that person would be expected to keep records and receipts. Indeed, that person might be asked by the Court of Protection or the public guardian to produce them. In that sense, the amendment is very much on point because there is a formal requirement and understanding. The hon. Gentleman will know that such a provision is not new under an enduring power of attorney; it is the present arrangement.
 The hon. Gentleman will also understand that, for of the reasons that he has illustrated so eloquently in the past and because this is a day-to-day Bill that covers so many actions, we must also strike a balance. In some cases, such a requirement in informal settings would be bureaucratic and unnecessary. We have talked a lot, particularly today, about the role of doctors, nurses and formal carers in the social services context of the Bill. We have talked less about brothers, sisters, mothers and fathers, but the hon. Gentleman would be the first to talk about red tape if we required people to save up receipts and so on in that informal setting. It would be an onerous process. That is why I hope that he will withdraw the amendment, although that does not mean that best practice is such circumstances is not desirable.

Tim Boswell: I am almost convinced by the Minister's eloquence—and if not by that, by the hour. We should take away what he said and consider it. Clearly, there is good practice. I confess again that I have not checked with the code to see whether reference is made to such matters. We shall
 have much more to say about financial propriety later; in a sense, it is secondary to the issues of life and death that we have spent most of our time on today, and I do not want to put it on the same parity. However, worries remain, and on the whole, they are not about the milk bill. I understand the Minister's point about red tape and de minimis. Equally, it would be difficult for an attorney to pay out for the milk bill without the milk bill receipt being in front of him to prove that the expenditure took place. However, we can now let the 
 matter rest, and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 8 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Ms Bridget Prentice.] 
 Adjourned accordingly at half-past Four o'clock till Tuesday 26 October at half-past Nine o'clock.